Article 852 Spanish Criminal Procedure Act: Cassation for Infringement of a Constitutional Provision

Article 852 of the Criminal Procedure Act consists of a single sentence: in every case, an appeal in cassation may be lodged on the ground of infringement of a constitutional provision. Its brevity is deceptive, because it is the route by which the Supreme Court examines complaints that would otherwise be closed to it under the narrow grounds of article 849. Presumption of innocence, the right to a defence, the right to an effective remedy, the reasoning of judgments and the prohibition on the use of unlawfully obtained evidence all enter cassation through this article.

Wording of Article 852 of the Spanish Criminal Procedure Act

Requirements and procedure

1. A final judgment open to cassation, or one brought within the scope of article 847 by reason of the constitutional ground.
2. Identification of the specific constitutional provision infringed, which must be cited: a general appeal to unfairness is inadmissible.
3. That the breach was raised at the earlier stages where that was possible, since the Supreme Court will not entertain a complaint that could have been remedied below.
4. That the breach was material, that is that it affected the outcome and caused an actual deprivation of the right.

Defence strategy

Presumption of innocence as a ground of review. This is the principal use of the article. The complaint is not that the court preferred one version of the facts but that the inference drawn was irrational, that the evidence relied on was insufficient in law, or that the reasoning omitted evidence capable of altering the conclusion. Framed in those terms it is a question of law, and it opens a review that article 849 would not permit.

Unlawfully obtained evidence. Where the case rests on a search, an interception or a seizure carried out in breach of a fundamental right, this article is the vehicle for challenging its use and the use of everything derived from it. The complaint must map the chain from the unlawful act to each item of evidence relied on in the judgment, and it must have been raised at trial, which is why the objection is recorded at the earliest stage.

Defects in the reasoning of the judgment. The right to an effective remedy requires that judgments be reasoned. A judgment that fails to address a defence submission, that does not explain why one expert was preferred to another, or that gives no reasons for the individualisation of the penalty is open to challenge under this article. Identifying the precise submission left unanswered is what distinguishes a viable ground from a general complaint.

Preserving the ground and exhausting the remedies. The Supreme Court requires that the breach be raised as soon as it could have been, and that the remedies available below be exhausted, including the application for the annulment of proceedings where appropriate. The strategy is therefore built from the trial itself, and where a breach emerges only after judgment the appropriate route must be selected with care to avoid the complaint being held out of time.

• Article 847: appeal in cassation
• Article 790: appeal against judgment
• Spanish Criminal Procedure Act by article
• Spanish-language entry

This entry is provided for information only and does not constitute legal advice. The application of any provision depends on the circumstances of the individual case and requires examination of the case file by a qualified lawyer.